Excerpt:.....which could be cured, specially, when i find that by this no prejudice has been caused to the accused. 7. the charge as framed by the trial court clearly stated that the appellant had directly obtained a sum of rs. the charge no doubt should have contained better particulars so as to enable the appellant to prove his case but the record, on the other hand, discloses that the appellant understood the case against him and adduced evidence which he wanted to place before the court. section 215 of the code of criminal procedure, 1973 says that 'no error in stating either the offence or the particulars required to be stated in the charge and no omission to state the offence or those particulars shall be regarded at any stage of the case as material unless the accused was in fact misled..........money together, with the parna and also rounded up all the 12 persons and took them to the local police station on the representation that they had ween found gambling with money in public premises. hazara singh and his companions told the tea-vendor (yog raj) to pass on the information about this incident to their village sarpanch lakshmi chand. on reaching the police station, hazara singh and his companions were illegally confined inside the premises of the police station. after about two or three hours of the said incident, a telephonic message was received at the police station from the sub-divisional magistrate., consequently, excepting balwinder singh, kapura and anant ram, all others were let off. these three persons were detained in the police station and on the following.....

Judgment:

S.S. Dewan, J.

1. This is an appeal filed by Devinder Sarup which is directed against the judgment of Shri T.S. Cheema, Special Judge, Rupnagar dated 28th February, 1979 by which the appellant has been convicted under Section 5(2) of the Prevention of Corruption Act (hereinafter referred to as the Act) and has been sentenced to rigorous imprisonment for one year and a fine of Rs. 400, in default to undergo rigorous imprisonment for three months. He also stands convicted under Section 342 of the Indian Penal Code and sentenced to one year's rigorous imprisonment. Both the substantive sentences have been made to run concurrent.

2. The facts of the prosecution case are as under:

On 9-12-1976, Devinder Sarup was posted as Station House Officer, Anandpur Sahib, Balwinder Singh, Hazara Singh and Pohu Lal and nine others hailing from the same village used to do the work of Palledar in Anandpur Sahib Town. They used to come to Anandpur Sahib early in the morning and return to their village in the evening. Whatever money they earned during the day, the same they pooled in the evening and divided in equal share. On the date of occurrence in the evening. as usual, Hazara Singh and his 11 companions after day's work were present at the shop of Yog Raj, a tea-vendor of Anandpur Sahib in order to divide their day's earnings. The pooled money of the day's income worked out to Rs. 169 which after counting had been placed on a parna spread on the floor of the verandah of the tea-vendor. They were yet to apportion the pooled money when the accused Devinder Sarup accompanied by some Constables arrived there. He grabed the pooled money together, with the parna and also rounded up all the 12 persons and took them to the local police station on the Representation that they had Ween found gambling with money in public premises. Hazara Singh and his companions told the tea-vendor (Yog Raj) to pass on the information about this incident to their Village Sarpanch Lakshmi Chand. On reaching the police station, Hazara Singh and his companions were illegally confined inside the premises of the police station. After about two or three hours of the said incident, a telephonic message was received at the police station from the Sub-Divisional Magistrate., Consequently, excepting Balwinder Singh, Kapura and Anant Ram, all others were let off. These three persons were detained in the police station and on the following morning, they were taken to local Civil Hospital to get them operated for vasectomy. It is stated that the Hospital Authorities were still busy with the preliminaries in order to perform operation on these persons when the Sub-Divisional Magistrate too arrived there and through his intervention, Balwinder Singh and his two companions were let off. In compliance with the orders of the Sub-Divisional Magistrate, Moharrir Head Constable of the police station brought Rs. 57 and offered to pay the same to Balwinder Singh and his companions but the latter refused to accept the same. Balwinder Singh and his companions represented to the then Chief Minister, Punjab. The Superintendent of Police, Rupnagar forwarded the application Ex. PA of Balwinder Singh and others to the District Magistrate, Rupnagar with a view to procure his order under Rule 16.38(i) of the Police Rules. The District Magistrate accorded the necessary sanction and this led to the registration of a case against the accused. After necessary investigation, the accused was challaned.

3. In order to prove its case, the prosecution examined 14 witnesses. When examined under Section 313, Criminal Procedure Code, the accused denied the prosecution allegations and pleaded false complicity in the case. He, however, examined Om Parkash (D. W. 1) and Ram Lal (D. W. 2) besides tendering into evidence some documents in defence.

4. After considering the evidence of the parties, the learned Special Judge convicted the accused for the offences as indicated above. He has challenged his conviction and sentence in this appeal.

5. The learned defence counsel raised certain questions of law and on the basis of such questions he argued that the conviction of the appellant under Section 5(2) of the Act was illegal.

6. The first point which was raised was that the charge which was framed was defective inasmuch as it did not indicate the manner in which the appellant had abused his position in order to have pecuniary advantage by illegal and corrupt means, It was further said that the illegal and corrupt means employed was also not indicated in the charge. In my opinion, the inclusion of all these matters in the charge may have and possibly would have made the charge better but their absence from the charge did not amount to anything more than a petty irregularity which could be cured, specially, when I find that by this no prejudice has been caused to the accused. It was then said that the appellant was convicted under Section 5(1) (c) and (d) of the Act whereas the charge framed against him indicates that he was charged only for the offence under Section 5(1)(d) of the Act. It was suggested that the charge was defective inasmuch as it deprived the appellant of the opportunity to defend his case for the offence under Section 5(1)(c) of the Act. To buttress this argument, reliance was placed on a decision in Satnarain Lal v. Emperor AIR 1935 Pat 431 wherein it was observed that 'where an accused is charged under Section 304, but the whole trial is conducted as if it was a trial under Section 302, Penal Code, and the accused is convicted under Section 302, the conviction cannot be upheld. The trial is not mere irregularity but an illegality not curable by Section 537. The mere mention of Section 302 in the charge does not cure defect'. The facts and circumstances of the said case are entirely different and the ratio thereof is not at all applicable to the facts of the present case.

7. The charge as framed by the trial Court clearly stated that the appellant had directly obtained a sum of Rs. 169 from the Complainants by corrupt and illegal means. The charge no doubt should have contained better particulars so as to enable the appellant to prove his case but the record, on the other hand, discloses that the appellant understood the case against him and adduced evidence which he wanted to place before the Court. Section 215 of the Code of Criminal Procedure, 1973 says that 'no error in stating either the offence or the particulars required to be stated in the charge and no omission to state the offence or those particulars shall be regarded at any stage of the case as material unless the accused was in fact misled by such error or omission and it has occasioned a failure of justice'. It also appears that the appellant never raised any objection before the Special Judge on the score that the charge was defective or that he was misled in his defence on the ground that no better particulars were mentioned in the charge. I accordingly reject the argument of the appellant on this point.

8. The second point urged by the learned Counsel for the appellant was that the offences under Section 5(1) of the Act and under Section 342, I.P.C. could not be tried together. I find no force in his contention. Section 7 of the Criminal Law Amendment Act (XLVI of 1942) is in the following terms:

7. (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (Act V of 1898) or in any other law the offences specified in Sub-section (1) of Section 6 shall be triable by special Judges only.

(2) Every offence specified in Sub-section (1) of Section 6 shall be tried by the special Judge for the area within which it was committed, or where there are more special Judges than one for such area, by such one of them as may be specified in this behalf.

(3) When trying any case, a Special Judge may also try any offence other than an offence specified in Section 6 with which the accused may, under the Code of Criminal Procedure, 1898, be charged at the same trial.

It is, thus, seen that the specific provisions of Sub-section (3) admit of no doubt in authorising Special Judges to try any offence other than the offences specified in Section 6 with which the accused may under the Criminal Procedure Code be charged. The only limitation is that prescribed by the provisions relating to joinder of charges under Sections 218 to 221, Cr. P. C I am, therefore, of the view that the offences under Section 342, I.P.C. could be tried along with the offence under Section 5(2) of the Act at one trial.

9. The facts that Balwinder Singh (P. W. 6), Hazara Singh (P. W. 7) Pohu Lal (P. W. 8) and their eight companions used to pool their income and then distribute amongst themselves in equal shares at the close of the day; that they placed their earnings of the day on a parna spread on the floor of the verandah of the tea-shop of Yog Raj when the appellant along with some other police officials arrived there and wrapped the currency notes amounting to Rs. 169 in the patna while representing that they were gambling in a public place; that Balwinder Singh and his companions were taken to the police station by the appellant and they were illegally confined inside the premises of the police station, are established from the testimony of the aforesaid three eye-witnesses. The evidence of these witnesses is consistent and straightforward. They have singularly refrained from indulging in embellishments. The defence has not succeeded in surfacing any material discrepancy or deviation during the course of their cross-examination. Their testimony thus being free from any material infirmity carries an intrinsic ring of truth about it. It has not been shown that they had any enmity with the appellant and were interested in his false implication. The version given by these eye-witnesses receives further corrobora-tion from the statements of Lember Singh, Head Constable (P. W. 9), Pishaure Singh, Constable (P. W. 10), Yog Raj (P. W. 11) and Lakshmi Chand, Sarpanch (P. W. 12). The evidence on record does not indicate that these witnesses were interested in falsely implicating the appellant. The testimony of Lember Singh, Head Constable, a responsible police officer lends full support to the statements of the aforesaid witnesses. This witness has deposed that he brought Rs. 57 from the police station, for payment to Balwinder Singh and others but they refused to accept the amount on the plea that the money taken from their possession by the appellant was Rs. 169, It has not been shown that Lember Singh had any animus against the appellant and on that account associated himself with the aforesaid witnesses. There appears to be no reason to doubt the correctness of the prosecution case. So far as the defence plea taken by the appellant is concerned, it was rejected as a cock and bull story by the trial court. To my mind, it would be totally wasteful to tread the same ground over again. It suffices to mention that I would endorse in toto the reasoning and the finding of the trial court.

10. The learned Counsel lastly submitted that the sentence of imprisonment was excessive. I am unable to accept this contention. Upon the finding of the trial court in this case, it is manifest that the appellant in his official capacity as Station House Officer was expected to maintain a high standard of integrity and to uphold the maintenance of law. Instead, the proved facts disclose that there was a gross abuse of his official position on the part of the appellant and in the circumstances of the case I am satisfied that the sentence imposed is not excessive.

11. For the reasons expressed, I affirm the judgment of the trial court and dismiss the appeal.